The Deferred Action for Childhood Arrivals (DACA) is a progam that was enacted vis-a-vis an Executive Order signed by President Obama on June 15, 2012.DACA’s intent is to protect undocumented individuals who were brought into the country as children and overstayed, or entered illegally (Entered Without Inspection, “EWI”). By coming forward and applying, they are guaranteed that they will not be deported (barring any subsequent criminal convictions that make them deportable) and will be legally permitted to work in the United States. The intent of the program merits praise, but its fatal flaw is that it offers no path to citizenship - and the future of DACA is uncertain since it is an Executive Order rather than an Act of Congress.

DACA has provided few assurances, which may be the main contributing cause to the reason it has seen a lower participation rate than anticipated among those it was designed to benefit.

DACA does not grant legal status to any immigrants and it is not a permanent measure.

A newly released study shows that only about half of those immigrants who are eligible have applied.Statistics compiled byThe Migration Policy Institute, a nonpartisan research group, found that only 567,500 (52%) of the 1.1 million immigrants eligible for deferred action have applied thus far.

Immigrants who took advantage of DACA and were approved will need to have their statuses renewed by the end of 2014. How these renewals will be handled by the Obama administration is currently unknown. So even those who have chosen to come forward are still in limbo.

As I pointed out when the program was first launched, DACA lacks substantial protections for those here unlawfully, which is likely what has caused so many immigrants to shy away from it. Many immigrants who have been living in this country without permanent status are reticent to come forward and provide their names, residences and backgrounds for any official records. There is no guarantee within DACA that the information an applicant provides in his or her application will not be shared by USCIS (U.S. Citizenship and Immigration Services); or, that deportation will result from the new information.

Additionally, if someone omits part of his or her criminal history and this omission is discovered, it has the potential to trigger an appearance before an immigration judge and eventually deportation could occur.

The Speaker of the House of Representatives John Boehner has recently stated that any Immigration reform that clears the House will be done in piecemeal fashion. Congressional inaction has served to exacerbate the uncertainty that surrounds DACA and US Immigration as a whole. The Executive Order behind DACA is set to expire this year. Many members of the House Republican caucus are adamantly opposed to providing a path to citizenship.

As many people already know, the fight to pass comprehensive immigration reform has moved from the Senate to the House of Representatives, where it has sat idle, ignored by the few who have the power to quash it, including their spokesperson, John Boehner. The Republican leadership in the House of Representatives has stated in the past that a comprehensive bill to overhaul U.S. immigration policy - like one that closely mirrors the Senate's bill - would be dead on arrival in the House.

However, a recent hiring by Speaker of the House John Boehner of consultant Rebecca Tallent may indicate a welcome paradigm-shift for immigration advocates. We can hope can't we? It may be a miniscule glimmer, but we have tokeep some hope alive.

In early December, Mr. Boehner hired consultant Ms. Tallent, former Chief of Staff to Arizona Senator John McCain. Ms. Tallent has supposedly been asked by Mr. Boehner to handle immigration policy for his office. Given her experience working on Mr. McCain's comprehensive immigration reform bill, hiring Ms. Tallent has kindled speculation that a vote on immigration reform may come soon. An op-ed piece written by Ms. Tallent in early November may provide some clues as to Boehner's intentions.

Rather than passing one piece of legislation like the Senate bill, it seems more plausible that Republicans in the House will instead offer several piecemeal bills to cherry pick popular issues such as strengthening border security (and of course sliding in their porkbarrel legislation wherever possible, per the usual).

Nonetheless, moderate House Republicans are looking at their districts and seeing a groundswell of support for a fair immigration policy. No amount of spin can stop the demographic re-shaping of America. Heading into the 21st mistake, especially for those younger congressmen and women who aspire to be the next John Dingell (57 years in the House of Representatives). At the beginning of the 113th Congress, 75 of the Representatives (17% of the total House membership) had first been elected to the House in November 2012, so these neophyte know that if they aspire to long-term employment in Congress that that necessitates kowtowing to all important constituents, including the fastest-growing group, Latinos and second-generation immigrants.

We must hope that the hiring of Ms. Tallent by Mr. Boehner signals that we out-of-status individuals who have no voice in the country where they work raise families and pay taxes.

Supporters of comprehensive immigration reform need to pressure their representatives in order to make the "Dream" part of the "Dream Act" a reality.This is especially true for people whose representative is opposed to comprehensive immigration reform. To locate your Representative click here.

When a foreign national initially applies for an Non-Immigrant Visa ("NIV"), federal authorities check to see whether he or she meets certain standards. Once the United States Citizenship and Immigration Services (“USCIS”) approves someone’s petition, there are still several hurdles to surpass.That is why it is vital to retain an immigration lawyer who covers “both ends” -- the Stateside process of obtaining a petition as well as the consular phase in the person’s home country.

The next step after obtaining approval of a petition is to make an appointment at the US embassy in his or her home country for an interview. The person analyzing a given petitioner’s case is a Consular Officer (“CO”). If all goes well, the petitioner will get a “visa stamp” which corresponds to his or her specific approval.

The CO can deny visas based on:

The merits of USCIS approval: The embassy’s decision overrides that of the USCIS. That means that, upon reviewing a person’s application, the CO may disagree with USCIS’s determination that the petitioner qualifies for a visa. This decision is, for all intents and purposes, final.

Insufficient ties to home country: NIVs are meant for people who will not be staying in the US permanently. Therefore, the CO will be looking for evidence that a petitioner has sufficient ties to their country of origin. Not every visa has this stipulation.

Prior conviction or infraction: The CO will be especially interested in a petitioner’s legal history, in their native countries and the United States. Anything more grievous than a petty offense can bar entry to an otherwise qualified petitioner. Some things to remember:

COs have a particular distaste for finding “surprises” in a petitioner’s criminal record, so it is imperative to list everything.

Arrests or convictions from anywhere on the planet need to be acknowledged.

It may be possible to obtain a waiver to this kind of bar to entry. Waivers are what serve to lift the legal bar based on past criminal or immigration infractions. All the more reason to hire someone who knows how to handle waiver applications at the specific U.S. consulate where they will apply for their visas.

When choosing an immigration attorney make sure they know how to represent you on a consular level, in addition to preparing the initial visa application -- so you are protected throughout the process and your chances of encountering problems along the way are minimized.

A move to overturn a previous, normally non-appealable visa decision by the Obama Administration has created worries about “suspicious financial activity”. The Obama administration accelerated visa applications for about twenty-four foreign investors for a Las Vegas hotel after insistence from Senate Majority Leader Harry Reid and his staff, reports the Washington Times. The Times, said the Obama decision ultimately benefited several companies whose directors have been large Democratic contributors.

THE IMMIGRANT INVESTORS VISA

The United States Immigration Act of 1990 created a type of immigrant visa that would be available to those non-Americans who are able to invest $1 million in a business in the US provided that the business would employ at least 10 full time American workers, excluding the investor and his or her family members and others who may be in the US on non-immigrant visas such as an H-1B. Those who qualify for this type of immigrant visa, which is generally known as an EB-5 Visa, may live permanently in the US , also bringing their spouses and children who are under 21 years old at the time of initial application (collectively “the Investor’s Dependents”).

An Investor who can qualify for an EB-5 Visa initially files an application with the United States Citizenship and Immigration Services (“USCIS”) on a USCIS Form I-526. If USCIS approves the Form I-526, the Investor and the Investor’s Dependents are eligible to qualify for conditional permanent residence in the US, receiving a “green card” that is valid for two years. Within a 90 day period that ends at the second anniversary of the conditional permanent residence status, the Investor must submit evidence to USCIS with USCIS Form I-829 documenting that the full required investment has been made and that 10 jobs have been created or will be created within a reasonable time period. If USCIS approves the Form I-829, then the Investor and the Investor’s Dependents are eligible to have the conditions removed on their permanent residence, receiving a “green card” that can be renewed for life. After a further three years the Investor and the Investor’s Dependents will be eligible, if they wish, to apply to become United States citizens.

While successful EB-5 applications were limited during the period from 1990 to 2006, the economic challenges facing the US and in particular persistent unemployment in many areas have led to changes in both the structure of the program and the number of immigrant visas that have been issued.

One of those changes was to the amount required to be invested. While the basic amount required to invest remains $1 million, that amount may be reduced to $500,000 if the investment is made in a “Targeted Employment Area” (“TEA”), which is either a rural, sparsely inhabited area or one of relatively high unemployment. The determination of whether a location is within a TEA due to unemployment is in practice generally determined by the government of the local State; most applications are now made in a TEA.

A second change was to provide for “regional centers” as a vehicle for filing applications. 3,000 of the maximum 10,000 EB-5 Visas available each year were set aside in 2003 for those who use a Regional Center to qualify for EB-5 Visas. Those immigrants who qualify through a Regional Center are not required to show that their particular investment generated 10 jobs but are instead permitted to use an economist’s report that the effect of their investment, in combination with that of the other Regional Center applicants who invested in a particular project, generated 10 or more jobs per investor.

Another change has been in the number of applications and their success level. There has been a dramatic increase in the number of EB-5 Visas issued: as late as 2007 fewer than 800 applications were made; in 2010, 1,885; in 2011, 3,463 and in 2012 it is estimated that there were 6,200. There has been discussion that for 2013 the full 10,000 visa allocation may be used. The approval rate for individuals filing the initial I-526 Form has also increased from only 53% in 2005 to 83% in the first quarter of 2012.

Immigrant Visa Requirements:

The Investor and the Investor’s Dependents need not speak English or have any employment experience or education. For example, students in college who are 18 years of age or older have successfully applied for EB-5 Visas. The Investor and the Investor’s Dependents can live or work anywhere in the US and the Investor does not need to be actively involved in the day to day management of the investment. Many EB-5 Investors have a purely arm’s-length relationship with their investment.

However, USCIS regulations require that the Investor demonstrate to the satisfaction of USCIS that the money used by the Investor to fund the investment was gained in a lawful manner. Acceptable sources of acquiring the money include earning it through employment or running a business, receiving money through an inheritance or a gift, provided that these are fully documented. It is even possible to borrow the money provided that this is correctly documented and the Investor is liable for repayment. However, USCIS strictly interprets the need to demonstrate the literal source of funds. Investors should expect to have to disclose their financial circumstances for the last five years including the circumstances of those who may have given them the money such as a relative who provided an inheritance, gift or loan or if they received a payment or loan from their employers the financial circumstance of the company for five years. In practice most successful applicants provide 10 or even 20 years of financial history and retain the services of a local accounting firm to document their “Source of Funds.”

The Investment that the Investor will invest in must be a financial viable one. USCIS will in practice require a business plan that demonstrates a plan that should lead to success for the business and employment of the required number of American workers. Particular attention has been paid by USCIS as to how the business will acquire the premises and equipment that it will need and the funding required. USCIS will expect to see financing documented including for example commitment letters from financial institutions if debt financing will be required over and above the investments to be made by the EB-5 Visa Investors.

The Investment must create full-time jobs that, in general, must be in existence at the time that the Investor files the I-829. This means employment of a qualified employee in a position that requires a minimum of 35 working hours per week, regardless of who fills the position.

SMA Law Firm has over a decade of experience assisting foreign nationals with visas based on investment, including EB-5 petitions, as well as assisting business owners and project developers in structuring their projects so as to be compliant with all EB-5 requirements. This experience includes projects eligible to bring in investors both through regional centers or through direct investment, as well as other investment visa categories based upon investment, including E-1, E-2 and L-1 visas. Please feel free to contact us with any questions or inquiries concerning EB-5 visas or any other U.S. immigration matters.